Fresh Perspectives: Tips for Asserting Relevant and Proper Affirmative Defenses

• Publication year: 2022
• Author: Diana Cabrea-Vega

FRESH PERSPECTIVES: TIPS FOR ASSERTING RELEVANT AND PROPER AFFIRMATIVE DEFENSES

AUTHOR^*

Diana Cabrea-Vega

Once a lawsuit is filed, there are several options for responding to the complaint. A responding party can challenge the complaint in several ways including seeking removal (if filed in state court), or move to dismiss, strike, change venue, or demur. A party may also bypass challenges to the complaint and instead file an answer. Absent a dismissal at the pleading stage, the responding party will inevitably have to answer if litigation is allowed to proceed in the judicial forum. Newer lawyers are often involved in the early pleading stages of litigation and frequently tasked with drafting answers. Here are some tips to avoid common pitfalls and strategies to craft a well-pleaded answer with genuine and proper affirmative defenses.

WHAT IS AN AFFIRMATIVE DEFENSE?

"An 'affirmative defense' is one which 'sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought.' "¹ In other words, an affirmative defense is a defense rooted in law that serves as a defense to liability or damages to defeat the claims contained in a complaint.² However, what truly constitutes an affirmative defense may be unclear. It is important to ensure that defenses asserted are proper and not merely counterarguments to claims alleged. It is easy to cast a wide net and assert arguments, facts, and identify missing elements of plaintiff's claims with various defenses that are not actually affirmative defenses.

RISKS OF NOT ASSERTING DEFENSES

Generally, failure to assert a defense results in its waiver or forfeiture.³ Because of this, it is crucial to assert all potentially relevant affirmative defenses in responding to a complaint. At the same time, asserting defenses that are inapplicable or duplicative, lengthy, or improper can result in a poorly drafted answer and unnecessary discovery later in litigation. Judicial Council of California employment form interrogatory 216.0 requires parties to identify all special or affirmative defenses and for each: state all supporting facts; names, addresses and phone numbers of each person with knowledge; and to identify all documents that support the defense.⁴ Responding to this and similar interrogatories is very time consuming and incomplete responses may give rise to unnecessary discovery disputes.

Although uncommon, a poorly drafted answer risks a demurrer for failure to state facts sufficient to constitute a defense, which can lead to unnecessary delay and costs.⁵

PLEADING RELEVANT AFFIRMATIVE DEFENSES

Some procedural affirmative defenses are generally applicable for most employment actions, including statute of limitations, failure to state a claim, and at-will employment. Substantive affirmative defenses, however, require a careful evaluation of the causes of action alleged in the complaint. A good rule of thumb is to research available jury instructions for each claim. Available affirmative defenses are listed with the respective series of jury instructions for each category of claims. The following are some common employment affirmative defenses to help you craft a proper answer and avoid headaches down the road. This list is not exhaustive and does not include all defenses available.

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COMMON AFFIRMATIVE DEFENSES IN CALIFORNIA EMPLOYMENT LAW6:

Failure to exhaust.⁷ If you are asserting defenses to a complaint which contains nonstatutory causes of action for which "internal administrative remed[ies]" were in place to address, you can assert failure to exhaust internal administrative remedies as a defense.⁸ For statutory claims, also examine the extent to which a failure to exhaust jurisdictional remedies has occurred.⁹

Preemption. Some good examples of preemption include claims covered by the Workers' Compensation Act, where the sole and exclusive remedy of the employee or his or her dependents is subject to the jurisdiction of the Workers' Compensation Appeals Board . . ."¹⁰ Similarly, section 301 of the Labor Management Relations Act of 1947 (LMRA)¹¹ covers claims of unionized employees (i.e., employees covered by collective bargaining agreements) against employers for breach of the collective bargaining agreement. Consider preemption defenses...